우리 법원의 IP 허브 추진과 헤이그 관할합의협약 가입의 쟁점

In 2015, with the aim of strengthening the status of the Patent Court of Korea, the Supreme Court of Korea established the “Intellectual Property (IP) Hub Court Promotion Committee” and discussed a plan focused on the establishment of an international panel within the Patent Court of Korea. Subsequently, an international panel was effectively established within the Patent Court and an amendment of the Court Organization Act enabled it to conduct trials in foreign languages. Although the author welcomes the Supreme Court’s idea of making the Patent Court an “IP hub court” which would attract international IP disputes, and was surprised by its success in obtaining the amendment of the Court Organization Act, the author finds it frankly difficult to understand the objective pursued by the IP hub plan. On top of this, the specialists conducting the IP hub project being interested solely in IP law and neglecting the context of private international law and international litigation raise concerns. For Korean courts to become IP hubs, the following measures are required. First, there is a need to ensure the validity of choice of court agreements between foreign companies granting international adjudicatory jurisdiction (“international jurisdiction”) to Korean courts. To do so, Korea must first join the 2005 “Convention on Choice of Court Agreements” (the “Convention”) of the Hague Conference on Private International Law. The Convention is intended to act as an equivalent, in matters of international litigation, of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (i.e. the New York Convention). The Convention, which took effect on October 1, 2015 by the accession of EU member States, is a global norm that guarantees the validity of exclusive choice of court agreements and the international recognition and enforcement of judgments. It applies to registered IPR (intellectual property right) contract lawsuits, but it has its limits as on the one hand, it does not apply to registered IPR validity lawsuits, and on the other hand, applies only to lawsuits connected to contracts in the case of IPR infringement lawsuits. As regards to cases to which the Convention does not apply, it is necessary to change the Supreme Court’s attitude toward exclusive choice of court agreements. This can be accomplished through the amendment of the Private International Law Act of Korea which is currently pending before the National Assembly. Even if we follow the so-called small plan and consider the cases where the jurisdiction of Korea is recognized anyway, it is necessary to induce the parties to enter into an exclusive choice of court agreement in favor of Korean courts in order to guarantee the recognition and enforcement in foreign countries of Korean judgments. Second, in order to secure the effectiveness of the judgments of Korean courts, we must guarantee the recognition and enforcement in foreign countries of judgments rendered by Korean courts on the basis of choice of court agreements between foreign companies. To this end also, we must join the Convention. However, this also has a limit in that it is limited to Korean judgments which are based upon an exclusive choice of court agreement. International recognition and enforcement of Korean judgments beyond this is a matter to be resolved by the Judgment Project scheduled to be discussed at the forthcoming diplomatic conference. The concrete order of discussion in this article is as follows. First, some basic issues for discussion (Chapter Ⅱ), international jurisdiction in international IP litigation (Chapter Ⅲ), determination of the governing law in international IP litigation (Chapter Ⅳ), the recognition and enforcement of Korean judgments in foreign countries in international IP litigation (Chapter Ⅴ), the service of process in international IP litigation (Chapter Ⅵ), and the conduct of trial in foreign languages in international IP litigation (Chapter Ⅶ).